United States v. L. C. Ware
457 F.2d 828
7th Cir.
1972
Check Treatment

*1 America, UNITED STATES Plaintiff-Appellee, WARE, Defendant-Appellant.

L. C.

No. 71-1380. Appeals, States Court

Seventh Circuit.

March Dakich,

LeRoy Ind., defend- Gary, for ant-appellant. Lee, Atty., William U. John R. C. S. Wayne,

Wilks, Atty., Fort U. S. Asst. Ind., plaintiff-appellee. Judge, KNOCH, Circuit Before Senior STEVENS,

and EILEY and Judges. Circuit Judge. KNOCH, Senior Ware, Defendant-appellant, L. C. jury in a trial on a two-count convicted Information, charging Title violations 2312, 2313, transport of U.S.C. §§ Island, Blue stolen vehicle from known Indiana, receipt Illinois, Gary, stolen ve- concealment of a known motor moving in commerce. hicle interstate term five He was sentenced to a years count, concurrently. to run on each appeal followed. We affirm. appeal contention on It is defendant’s Judge improperly denied that the Trial suppress motion the confidential Gary inspection number inspec- ascertained from officers frame of the motor vehicle tion of the Information. described testimony Transcript of the and evi- Judge prior dence heard the Trial *2 up. left part the it when Officer Green drove of denial of the motion is a his Allen, who fol- William us. Detective J. record before a lowed Green in car ar- Officer position of- that the is defendant’s It immediately, 30 to sec- rived within without the automobile ficers seized onds. Allen had observed the Detective warrant, unreasonably it searched and driving suspected defendant the automo- it probable that cause to believe driving bile. He knew that defendant’s used, pos- contraband, privileges suspended had been and used, in commit- with intent to be sessed previously given been a defendant had ting crime, of of- an a or itself evidence operation traffic ticket for unlawful of a fense, himself was and that defendant motor told vehicle. Officer He Green solely subjected a arrest as to a sham that defendant had no driver’s license. in a pretext the automobile search Green defendant carried Officer asked his out further warrantless registration garage de- license and and checked the when a time personal plate custody identification on car door. De- in the fendant was and produced automobile fendant a driver’s in loss of the license or risk of Ellington reg- Larry the of name and a existed. Berry, istration the of in name Arthur weigh not, course, will of which, knew, neither of the officers concerning findings evidence and the defendant’s own Defendant was name. credibility. Iacullo, 7 States placed opera- for unlawful arrest 1955, 795, 788, Cir., cert. den. 226 F.2d tion a motor of vehicle. vehicle was 435, L.Ed. U.S. S.Ct. directly garage, towed the where Green Officer and Detective Allen finding would a immediately evidence cheeked the confidential ve- following the of stamped of facts. Patrolman set hicle on identification number Anthony Green, Gary, vehicle, In- William frame the motor check diana, Department, practicable received an Police which been have anonymous telephone suspected communication while automobile gold Cadillac, moving blocking a 1963 white over on the a lane of traffic Gary, Pierce, parked at and in 16th road. possibly a stolen from Illinois. Offi- through Na- number was run of that cer Green did find an automobile tional Information Center Crime description With De- location. proved to be that of stolen Gibson, maintained tectives Allen and he Island, Blue Illinois. remaining surveillance, in contact via Checking radio the serial number of an “walkie-talkie” communication. defendant, lifting by opening whom a door or Green saw the Officer automobile name, get by into and has held he knew drive the hood over motor been suspected automobile, away Cotton search. be 392; Cir., 1967, he followed. 371 F.2d Cir., States, 9 Pasterchik v. United route, Officer While en Green den., 696, 700, 400 F.2d cert. by radio and plate the license numbers registered Ar- learned were legitimate rea where officer has Berry. stopped automobile thur He son automobile. up pulling driving by defendant was (footnote Ninth adds a caution alongside de- it, himself introduced 5) against breaking ear into a locked officer, displaying fendant as a warrant, is not without a but badge through One the car window. case here. con- the conflicts Cir., Nikrasch, 7 aspect Defend- In cerned this of the case. United States v. companion which defendant testified F.2d on ant and his relies, quite they already different. parked automobile facts were Defendant there was arrested for disor- tion number was a search in- secured Village derly pursuant conduct cidental Code a lawful arrest. provision prohibiting about presented defendant When persons streets who were able registration driver’s license and give satisfactory them- account *3 him, belong the officers to knew did not A statute was held to be selves. similar light already in the of the information vague unconstitutionally in United good them, they available to had reason E.D.Pa.1966, Margeson, F. States v. 259 suspect did to that also the automobile eight Supp. 256, hours 268. At least belong Having not to defendant. re the arrest, police after the the the anony ceived some corroboration of the defendant had automobile in which been statements, police mous caller’s offi the items, driving, from number of which a cers have been remiss their including bags, money hacksaw and duty fully had failed the driver, screw found in an ear- had been automobile. the in Ama Unlike lier search at the scene of Cir., States, United 5 dor-Gonzalez v. suspicion The defendant awakened 1968, by (also 308, 391 F.2d cited inquired because he had whether defendant) the officers here were open at hour were that laundromats searching for narcotics or other contra (1:00 A.M.) the had been vehicle, possibly band, hidden in a after burglars were alerted to watch for who arresting on minor traffic the driver a robbing the area. laundromats violation, probable no where there was suppress in Nikmsch motion to The cause to the vehicle trans believe was porting the itself directed to automobile narcotics. was later therein. The all the items found Judge denying Trial mo- The the plate number discovery of a serial false totality suppress tion held that of of number and the true identification give sufficient the circumstances was triggered of confession a the automobile right search, if, in- the officers by convict- He was theft the defendant. deed, agree. was a this search. We stealing in a bench automobile of ed However, we are satisfied this trial. actually search, mere was not a but of auto- on the identification cheek conviction reversed This Court practicably which could not mobile be on evidence was based Nikmsch which accomplished street, scene serial and true the false included blocking delay. There traffic. Judge held numbers, Trial which the testified the check Officer Green incidental a search fruit of be they got po- made as soon as to the objection made No arrest. lawful lice and the receipt these numbers of to the v. United in Preston judgment decision Court is recent the District then 881, L. 364, 84 S.Ct. States, 376 U.S. affirmed. brought the Trial was not Ed.2d Affirmed. 744). (367 Judge’s F.2d attention before us. Again, case is Judge KILEY, (dissenting). respectfully I dissent. display require Indiana Statutes request disagree registration on action I license and Burns, “A inspection Stat Indiana a search. mere police officer. 47-2605, IC 47-2714, implies an examination of one’s Annotated, utes re person premises 9-1-4-40, or with a view Such 9-1-4-5. investigation discovery or contraband routine quest constitutes guilt prosecution of a used in v. to be an arrest. and not implies ex- The term F.Supp. action. D.D.C.1967, criminal Carter, investigation quest.” or ploratory contend does not States, F.2d identifica- Haerr the confidential by 1957). police at (5th authority re- offense of known Cir. Ware prior government, arrest was his upon the time of Ware’s Pasterchik lied States, (9th a license. conviction 400 F.2d 696 Cir. United inspection for evidence 1968), search was therefore does not tip. annoymous theory It The Pas- substantiate noteworthy on the facts before us. searched authority also court, terchik on of its of the car States, trunk and the interior own 371 F.2d the Cotton United 1967), po- looking ve- for the confidential (9th while said that Cir. my number. In identification to hicle liceman need not obtain a warrant number, opinion un- “open was unreasonable a door to check serial the search open motor num- der Preston v. hood to check the L.Ed.2d 777 if he ber” has “reasonable cause be- that a car or has *4 lieve has been legitimate any other reason to anonymous call In Preston an was lawfully already car” where the car is They police. and it out made opinion, Here, my available to him. vagrancy. and arrested Preston for He was cause to believe no reasonable the car were station where taken stolen. the car driven Ware was vagrancy. car booked for His he was agree link in the chain I that the first garage. police, The was towed to police prudent involved of circumstances car, rea- when had no searched the checking anonymous out work participated belief that had sonable he phone call. vagrancy. any As crime than other agree arrest Ware also driving I us, police could in the before case valid. license is without for not warrant have obtained a valid car was of the knew the driver Green search car. license the state check of Ware. The police ear im- here searched the The own the car. did not Ware showed mediately arriving station. after at license that the driver’s also knew Green knowledge point they had no this At proffered its false on Ware justify a reasonable belief which would told arrived and Green face. Then Allen that it much less that the car was previously forfeited Ware There was another was stolen in state. viola- a traffic for own driver’s license anonymous tip only an to the effect tion. police could not have The it was stolen. procured girl taken friend were Ware and his upon warrant a valid search and the car station knowledge they had when Ware The war- towed to the Aguilar Spinelli, arrested, and Har- see immediately. rantless search followed validly supra, have ris, and could a warrant ex- car searched the without did not sub Ware’s traffic offense cept protect or evidence. anonymous themselves tip, and the stantiate the requires more than Fourth Amendment seized loaded police in Preston The anonymous “tip” justify phone call compartment glove guns in the Spinelli v. See search. other incrimi- and thereafter seized 410, 418, L. 21 393 U.S. S.Ct. The evi- trunk. nating in the car items Aguilar Texas, (1969); Ed.2d 637 Preston used to convict dence was L.Ed.2d 378 U.S. S.Ct. The conspiracy a bank. to rob others Harris, (1964); rejected reversing, Supreme Court, 573, 403 U.S. S.Ct. was reason- search contention that the incident able as person under evidence, is that once stated needed further custody, made made, search and in arrest when the search was a war- driving place against another time for their case Ware Pres- an arrest. only prior rant not incident And the without a license. ton, supra, 11 L. in the car which aid in S.Ct. could be would driving thought prosecution Ed.2d for 777. The Court Ware garage license, when the at the without a ready since al- search made had seen him and had there was no that Preston or his companion any weapons did could used known that he license. have have any general destroyed The search was a warrantless car or could have could the car search another crime. evidence or have driven out jurisdiction. of the Court found I reverse the conviction. bring facts did the search exceptions of the con justifying stitutional a warrantless rule closely paral

search. Preston case

lels case before us. per A warrantless search is unrea- se and the

sonable bears a

heavy establishing proof burden of excep- within an comes RELATIONS NATIONAL LABOR Coolidge

tion to the constitutional rule. BOARD, Petitioner, Hampshire, v. New 455, 454- 29 L.Ed.2d 564 Display Sign and Pictorial Artists and *5 my govern- Workers, 639, Brotherhood It is Allied Local view AFL-CIO, Trades, of Painters and Allied heavy ment has not carried the burden Intervenor, successfully, that the district court erred sustaining v. sup- in not Ware’s motion to press the identification COMPANY, Respondent. number seized SIGN CANTON search, unreasonable and that No. 71-1284. that number de- use of evidence Appeals, rived from its use convict Ware was Sixth Circuit. constitutional error. March Maroney, not a Chambers 90 S.Ct. (1970), ease where the arrest upon probable robbery armed cause of the search of car would where justified highway

have been on the as

incidental to Nor is United Castaldi, (7th

States Cir., F.2d 506

1971), government. of aid to the

There, because two Castaldi’s com-

panions large M., the were at A. 3:00 target” “fleeting

automobile was

the rule of Carroll

U.S. 69 L.Ed.

(1925), possible danger po- with

lice and evidence.

Here, po- was no po-

lice since the searched at the “fleeting

lice It was tar- get.” any possibility Nor was there destroy the arrested Ware could

any Furthermore, evidence. it would be unreasonable for

argue incriminating